The recent hit online drama “Rock and Roll” tells the story of Peng Lai (Yao Chen), the lead singer of a women’s rock band who was once a hit in China, and went to the United States due to emotional changes. ) The story of constant friction, and finally realizing the ideal and regaining family affection after going through many tests.
A “crazy” middle-aged woman, a rebellious young girl, although a mother-daughter relationship, she is more like a stranger, and the friction continues to escalate. But Penglai and Bai Tian persevered in their rock-and-roll dreams, and through hardships, the mother-daughter duo eventually came together.
This drama is a comedy on the surface, but the core is actually a tragedy. The plot with tears in laughter is the most moving. Law comes from life, and it is never far from our life. The author selects several marriage and family legal issues that everyone is interested in from the plot to interpret it.
Legal Aspect 1: Can the parent-child relationship be terminated by signing an agreement or declaration?
[Plot]Chen Yue is the stepmother of Peng Lai’s daughter, Bai Tian, who was raised by Chen Yue since she was six years old. When Chen Yue learned about the suspension of school in the daytime, she rushed to find a teacher Peng Laixing to inquire about the guilt, asking Peng Lai to sign an agreement to sever the mother-daughter relationship, and promised to pay a huge amount of compensation.
1. The parent-child relationship can be divided into two types, the parent-child relationship of natural blood relatives and the parent-child relationship of artificial blood relatives. The natural blood parent-child relationship, commonly referred to as the biological parent-child relationship, is based on the fact of the child’s birth.
my country’s “Constitution” stipulates that parents have the obligation to raise and educate minor children, and adult children have the obligation to support and assist their parents. The “Civil Code” stipulates that the relationship between parents and children is not eliminated by the divorce of parents. After divorce, the children are still the children of both parents regardless of whether they are directly raised by the father or the mother. None of the current laws in our country provides for the termination of the legal relationship between the biological parents and their children. That is to say, the relationship between biological parents and children cannot be terminated by the parents signing a termination agreement with others or by self-declaration.
Imaginary blood relatives refer to relatives who are not originally related by blood, or have no direct blood relationship, but are legally determined to have the same status as blood relatives. Since such blood relatives are not formed naturally, but are established by law, they are also called “quasi blood relatives” or “legal blood relatives”. There are two types of fictitious blood relatives recognized by the current law in my country:
Legal and valid adoption is the basis for the proposed blood relationship. Once the adoption relationship is established, the adopter and the adoptee will form a relationship of rights and obligations between parents and children. According to the provisions of the Civil Code, if a child is legally adopted by others, the rights and obligations of the adoptee and the biological parents shall be eliminated upon the establishment of the adoption relationship.
The relationship between adoptive parents and adopted children is terminated due to the dissolution of the adoptive relationship. That is, after the adoption relationship is terminated, the adopter and the proposed blood relationship with the adoptee are terminated.
2. Occurrence and termination of the relationship between stepparents and stepchildren that form the fact of support
There are two reasons for the formation of fictitious blood relationship between stepparents and their stepchildren: one is the legal act of marriage between the biological father (mother) and the stepmother (father); The facts about upbringing and education. Only when these two conditions are met at the same time can a pseudo-consanguinity relationship occur between stepparents and stepchildren. However, the relationship between stepparents and stepchildren who have not formed the fact of raising is only by marriage.
If the stepparents support the stepchildren for a long time, the fictitious blood relationship between them will not be terminated due to the disintegration of the marriage relationship between the biological father (mother) and the stepmother (father). If the relationship between stepparents and children who have lived together for a long time or have a relationship of upbringing and education deteriorates, if both parties or one of the stepparents file a request to the people’s court to terminate the relationship between stepparents and children, the termination may be granted. However, after the dissolution of the relationship, the step-parents who are old and infirm and living in difficulties, the original step-children who are adults should still bear the obligation of support and assistance.
Legal point 2: If one of the co-owners of the house sells the co-owned house without the consent of the other co-owners, what are the legal consequences?
[Plot]The house in the play belongs to Peng Lai and his daughter Bai Tian, who each own 50% of the property rights. Penglai proposed to sell the house in exchange for money, but Bai Tian firmly disagreed. Penglai was determined to sell the house, so she prepared hot pot for the day at home, got drunk during the day, and then affixed her handprint on the agreement to sell the house. Tian Tian accidentally learned that Peng Lai had secretly sold the house of the two, so he went to the intermediary company to make a scene and tore up the house sale agreement.
Attorney General:
1. Is the house sale contract valid in this case?
The newly promulgated Civil Code not only improves the original legal system, but also reconstructs and revises many legal rules.
Originally, Article 51 of the “Contract Law” stipulated that “where a person without the right to dispose of the property of another person disposes of the property, and the right of disposal is ratified by the obligee or the person without the right of disposal obtains the right to dispose of after entering into a contract, the contract is valid.” The first paragraph of Article 597 stipulates that “if the ownership of the subject matter cannot be transferred because the seller has not obtained the right of disposal, the buyer may rescind the contract and request the seller to bear the liability for breach of contract”.
In short, if the seller does not have the right to dispose of, and the right holder does not ratify it or the seller does not obtain the right to dispose of after the contract is concluded, the signed sales contract is invalid. According to the new provisions of the “Civil Code”, even if the seller does not have the right to dispose of, the sales contract signed by it is not invalid, but valid. The “Civil Code” has deleted the provisions that “the right to dispose of is obtained after the right holder has ratified or the person who has no right to dispose of has concluded a contract”.
Specifically in this case, Penglai sold the property to a third person without the consent of the day, and signed a house sale contract with the third person. According to the original “Contract Law”, if there is no post-mortem ratification, that is, agreeing to sell the house and approving the house sale contract signed by Penglai, then the court will rule that the contract is invalid; and according to the current “Civil Code”, Peng The house sale contract signed by Lai and the third party is a valid contract, regardless of whether it is agreed or ratified by the day.
Why is this so? This involves the separation of contract effect and property effect. A contract is valid as long as it is signed voluntarily by both parties and there is no statutory invalidity. For property rights, registration is the prerequisite for entry into force. If registration is not done, there will be no change in property rights. Without the right to dispose of, it may lead to the failure of the contract to continue to be performed or the performance cannot be performed, so that the buyer cannot obtain the ownership (property) of the subject matter. However, the inability to obtain property rights (ownership) is only the effect of performance after the signing of the contract, not the reason for the invalidity of the contract. Simply put, the performance of the contract cannot be the same as the invalidity of the contract. If the buyer cannot obtain the ownership (real right) of the property in the end, in this case, although the sale of the property has not been agreed during the day, the contract between Penglai and the third party still binds the buyer and the seller, and Penglai shall undertake to the buyer that the property cannot be transferred. However, it cannot be considered that the house sale contract is invalid because the owner cannot transfer the property.
2. Assuming that the house has been delivered to the buyer without his knowledge during the day, does one of the co-owners have the right to recover the house during the day?
If the co-owner disposes of the co-owned property without authorization, in principle, there will be no change in the property rights, unless there are legal provisions, such as the system of obtaining in good faith. Acquisition in good faith refers to a property occupier who has no right to dispose of the property of others, after illegally transferring the property in his possession to a third party, if the transferee acquires the property out of good faith, that is, legally acquires the ownership of the property , the original owner of the property shall not require the transferee to return the property.
According to the provisions of the Civil Code, the constituent elements of a bona fide acquisition of real estate are: the assignor has no right to dispose of it; the assignee is in good faith; the transfer is paid for at a reasonable price; Regarding whether the assignee is in good faith, the judicial practice adopts the presumption method, and the original right holder provides evidence on whether the assignee has malicious intent. If it cannot be proved that the assignee is malicious, the assignee is presumed to be in good faith.
The “Civil Code” stipulates that “if the person who has no right to dispose of the real estate or movable property transfers the real property or movable property to the assignee, the owner has the right to recover it”. One of the other co-owners can exercise the right of recovery during the day. If the assignee constitutes a bona fide acquisition, he can only claim back to Penglai to compensate for the loss of half of the house value during the day.
Legal Aspect 3: Can a child refuse to be supported if the parents fail to fulfill their supporting obligations?
[Plot]Ding Huiru is Peng Lai’s mother. After her divorce from her husband, she ignored Peng Lai. Later, Ding Huiru suffered from Alzheimer’s disease and entered a nursing home. Thanks to the help of her granddaughter, Ding Huiru, she was able to live with Peng Lai. In the end, before dying, Ding Huiru finally woke up, took Peng Lai’s hand, and took the initiative to repent of her past. Peng Lai had long since forgiven his mother, and finally Ding Huiru died peacefully.
Attorney General:
1. Children have maintenance obligations to their parents, and they cannot be exempted from maintenance obligations because parents fail to fulfill their maintenance obligations to their children.
1. The maintenance obligation is a legal obligation and is not affected by the parents’ reasons. Children have the obligation to support their parents. According to the law, parents have the obligation to support and educate their children, and children have the obligation to support and support their parents. The former is not a prerequisite for the latter. Responsibility for parental support.
2. my country’s “Law on the Protection of the Rights and Interests of the Elderly” also stipulates that the supporter shall not refuse to perform the support obligation by giving up the right of inheritance or other reasons.
Therefore, there are no conditions attached to supporting the elderly. Although Penglai’s mother did not fulfill her supporting responsibility for Penglai and was at fault, this cannot be the reason for Penglai’s failure to fulfill her supporting obligations.
3. If the child refuses to perform the maintenance obligation, the parents who are supported can go to the court to sue when necessary. After the court conducts a trial, the child will be judged to perform the maintenance obligation according to the specific circumstances.
Parents who need support may mediate through the relevant departments or file a lawsuit with the people’s court. When dealing with maintenance disputes, the people’s court shall adhere to the principle of protecting the lawful rights and interests of the elderly, and enable children to perform their maintenance obligations in accordance with the law through mediation or judgment. Those who are obliged to support and refuse to support, if the circumstances are bad and constitute the crime of abandonment, shall bear criminal responsibility.
2. What does the maintenance obligation include?
Articles 11 to 15 of the Law on the Protection of the Rights and Interests of the Elderly stipulate that the obligations of supporters include: 1. Material support. The provision of living expenses is the most basic. When the dependents are ill, medical expenses and nursing care should be provided, and housing for the elderly should be properly arranged. Children or other relatives shall not encroach upon the houses owned or rented by the elderly, and shall not change the property relationship or the lease relationship without authorization.
2. Support in daily life. Care and support should be given to parents who are old and frail and have lost the ability to take care of themselves, and care should be given to parents who are sick.
3. Give spiritual comfort. When parents enter old age, they need the comfort of family to overcome loneliness.
Text / Zhang Lizhen
(Founding partner and lawyer of Beijing Anjia Law Firm)Return to Sohu, see more